DACA is unconstitutional: Now what?

On more than 20 occasions, President Obama asserted he did not have the constitutional authority to circumvent Congress in order to create his own immigration policy.

During one such occasion in 2011 he stated: “Believe me, the idea of doing things on my own is very tempting … But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

In 2013, he echoed his earlier comments: “My job in the executive branch is supposed to be to carry out the laws that are passed … if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally.”

Clearly, Obama had a firm understanding that he should not exceed his constitutional mandate.

Then, just a few months later, he entirely changed his mind. Standing in the Rose Garden, President Obama sidestepped congress and announced what is now known as Deferred Action for Childhood Arrivals, or DACA.

DACA circumvented U.S. law to prevent the deportation of young illegal immigrants under certain circumstances. To have qualified, illegal immigrants must have attended or graduated from high school, entered the United States before the age of 16 and had a criminal record free of felonies or major misdemeanors.

At the time, many lawmakers raised concerns over the legality of President Obama’s action. The chief executive, many argued, should not hijack the rightful role of congress in crafting legislation, regardless of intent.

Many a time on the campaign trail, President Trump promised to terminate DACA “on day one” of his presidency—he ended up waiting until day 228. Last week, Attorney General Jeff Sessions announced DACA’s termination with a six-month implementation delay.

This announcement has incited spirited debate in the political arena of our country, and has elevated emotions on both sides of the issue. However, regardless of your opinion on what DACA has done, you must acknowledge that its nature of creation lies in direct contradiction to constitutional law. Regardless of its good intentions, regardless of the (temporary) piece of mind it gave to some illegal immigrants, DACA is, and always has been, unconstitutional.

Article one, section eight of the Constitution grants congress the power to establish the “rule of naturalization” for the United States; this alone makes congress the absolute authority in this area of federal power.

In our republic, it is congress who is responsible for creating law, not the president. No president, Republican, Democrat, or otherwise, should have the power to summarily create any legislation on a whim. Every American should celebrate the checks we place on presidential power.

Two years after implementing DACA, Obama announced a similar program to shield older illegal immigrants. This program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), was challenged by 26 states in federal court on grounds of unconstitutionality; a federal judge sided with the challenging states and halted the program. The case, United States v. Texas, eventually made it to the United States Supreme Court, where lower court rulings that DAPA was unconstitutional were reaffirmed.

This court decision may well have played into President Trump’s termination of DACA. Because of DAPA and DACA’s similarity, many believe that DACA is unconstitutional on the same grounds as DAPA—several states even promised to sue over DACA if President Trump did not take action.

Surprisingly, Trump appears to have no interest in deporting illegal immigrants protected under the DACA program—it seems as if he wants to make the policies of DACA law.

During the six month limbo before DACA termination takes effect, President Trump has made clear that he expects congress to pass legislation effectively codifying the policies of DACA into law. This nation’s most vocal immigration hawk suddenly supports what he once called illegal amnesty.

On Twitter, the president even hinted that he would reinstate DACA if congress does not act legislatively.

In the words of Fox News commentator Brit Hume, “The President opened a huge trapdoor in the whole thing when he said … that if Congress doesn’t act, he’s prepared to revisit the issue. It’s pretty clear that he doesn’t want to [deport anyone].”

Regardless of the President’s erratic stance on this important issue, one thing is clear: Immigration reform is past due in this country. Most importantly, it is the role of congress, not the president, to set this policy. Immigration reform should result in a higher level of border security, ensure that violent felon illegal immigrants are imprisoned or deported, provide a pathway to citizenship for former DACA recipients and other qualified individuals, and vastly streamline our country’s legal immigration procedures.

Although this issue is one of the most politically charged in the nation, Trump’s stance on DACA may actually lead to some sort of bipartisan compromise. Imagine that—President Donald Trump signing an Obama-era immigration policy into law. What a time to be alive.